Timber interests file suit vs. Interior Dept. head
From our weekly issue dated September 09, 2009
Cave Junction-based Rough & Ready Lumber Co. is among the plaintiffs in a court action against U.S. Interior Dept. Secretary Ken Salazar related to a critical habitat change that would hamper the timber industry.
The oral hearing request was filed in U.S. District Court in Washington, D.C. by Mark Rutzick, a Virginia attorney.
Other plaintiffs named in the Aug. 21 document include the Carpenters Industrial Council, American Forest Resource Council, Swanson Group Inc., Perpetua Forest Co., and Seneca Jones Timber Co.
On Aug. 13, 2008, U.S. Fish and Wildlife Service (USFWS) issued a final rule revising critical habitat for the northern spotted owl under the federal Endangered Species Act. However, earlier this year, Salazar declared his intent to set aside that rule.
According to the 33-page court document, the plaintiffs are asking that Salzar’s motion be denied. Remanding the critical habitat rule, according to court filings, would “undermine the strong judiciary policy in favor of settling disputes.”
Wrote Rutzick, “Simply because a new administration with differing policy objectives has come into office, the government should not be allowed to disavow its judicially approved contractual promises.”
Several management projects now are under way on federal land, but all that would change if Salazar’s decision is upheld, according to the filings.
“If 1992 critical habitat is reinstated, all these projects will have to be re-evaluated, and possibly suspended, while the Forest Service determines their impact on 1992 critical habitat,” Rutzick wrote. “New projects currently under development based on 2008 critical habitat will have to be reworked, with a loss of time and money.”
Changing the critical habitat rule would adversely affect communities throughout the Pacific Northwest, the document states, by causing delays that have “the potential to harm every employee of any company holding an awarded Forest Service timber sale that must be reviewed.”
Rutzick wrote that any such delays “will cause major disruption to federal land management agencies and private land owners in the three-state region.”
Setting aside the critical habitat rule also would require the Dept. of the Interior to go through its typical public comment and rule-making procedures, Rutzick wrote. Such a process has yet to occur since Salazar announced his decision.
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Frequently mentioned in the court filing is former USFWS deputy assistant secretary Julie MacDonald, a Bush administration appointee. She left her position in May 2007 amid allegations of political interference in scientific decisions. And a subsequent report by the Dept. of the Interior inspector general stated that her involvement “potentially jeopardized the decisional process” for the spotted owl recovery plan.
However, the contentions regarding MacDonald were strongly disputed by the plaintiffs in the court filing. It states that the spotted owl habitat decisions were made by career USFWS staff more than a year after MacDonald’s departure from the agency.
“Ms. MacDonald could not have influenced either of these 2008 decisions since she was long gone from the Interior Department,” wrote Rutzik. “Even if her involvement in the earlier stages of the decisional process had been unlawful … that involvement does not taint decisions she did not make.
“Absent a plausible showing that Ms. MacDonald actually influenced the final decisions, any impropriety on her part would be legally irrelevant.”
The court filing states that “… even if Defendant had pointed to facts showing that the appointee had influenced either decision in some unlawful manner, the only established remedy would be a limited remand to the agency for an evidentiary hearing to determine whether any improper conduct actually occurred-not the full remand and vacatur requested by Defendant Salazar.”
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